What exactly are the rules about hate speech?

It may feel like we’re hearing way more hate speech recently than ever before — think of Charlottesville, the white nationalists’ election rhetoric, and hell, just the internet in general — you might feel like you’re drowning in it. But in reality, hate speech has been a major fact of American life for much longer than that, and we’ve been trying to figure out what to do with it legally almost as long. Because in America, we protect free speech, but is there a point where speech goes too far?

Here’s what the First Amendment says:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

So it’s important to note that this amendment is talking about the government getting involved in free speech. And thanks to the Fourteenth Amendment, this applies to both the federal government, mentioned in the First Amendment, AND the states. But when we talk freely about our constitutionally protected right of free speech, that means only the government. Private companies can limit speech all they want, as long as they don’t violate any laws, because lots of states have discrimination laws that would govern a private company’s speech.

Because free speech is a constitutional issue, the Supreme Court has shaped most of what the country’s “hate speech” policy has become.

Over the last century, the big wigs in black robes have been trying to decide what to do with hate speech, and honestly, the results aren’t pretty. Overall, we still live in a country in which hate speech — which includes racist, antisemitic, and other discriminatory language — is protected under the rule of “free speech.”

As recently as the Charlottesville instance, even groups like the ACLU worked to protect hate speech in the name of protecting all free speech. The ACLU represented Jason Kessler, the Unite the Right organizer who planned to march in Charlottesville. The city tried to revoke Kessler’s permit to march, but, defended by the ACLU, a judge allowed the march to continue in Charlottesville.

But since the violence Charlottesville, it feels like the attitude towards those protections has started to change.

To start, the ACLU issued a statement condemning white supremacists who “incite or engage in violence,” saying that it’s not a form of free speech. Also following the violence in Charlottesville, Facebook, Twitter, GoDaddy, Google, OkCupid, Paypal, and Spotify all took a stand against alt-right and white supremacist users.

And yet technically, the freedom of hate speech is still protected in our country. Why is that?

Numerous supreme court cases have helped define hate speech in America. But in most cases, limits on hateful speech have been prohibited by the highest court in the land.

Here are some of the most significant cases:

• Schneck v. United States (1919)
• Terminiello v. Chicago (1949)
• Dennis v. United States (1950)
• Brandenburg V. Ohio (1969)
• National Socialist Party V. Skokie (1977)
• R.A.V. V. City Of St. Paul (1992)
• Virginia V. Black (2003)
• Snyder V. Phelps (2011)
• Manal v. Tam (2017)

But we’re just going to focus on a few key ones:

• Schneck v. United States (1919)
• Brandenburg V. Ohio (1969)
• Manal v. Tam (2017)

Schneck v. United States (1919)

Up until 1919, the U.S. interpreted free speech using the “bad tendency” doctrine. This rule says that speech cannot be limited unless it has a “bad tendency” to cause illegal activities, like violence or property damage. This rule is considered pretty lenient, because it actually gave the government a lot of power to limit what it deemed potentially troubling speech.

But then in 1919, a socialist named Arnold Schneck started sending out flyers that encouraged men to dodge the draft. We were in the middle of World War I at the time, and he didn’t think it was just to force men into service. Schneck was arrested, and his case went all the way to the Supreme Court. The Supremes decided that Schneck was in fact not protected by the First Amendment, and their reasoning would influence the laws on hate speech for years to come.

Justice Oliver Wendell Holmes wrote in his opinion, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” He went on to say, “The question in every case,” said Holmes, “is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

This established the “clear and present danger” test. That’s right, it’s NOT just a movie. It was a new doctrine that suggested that in order for a government to limit speech, there had to be very obvious and likely danger that might come from that speech. Even though Schneck remained in jail for his speech, the overall effect of the law made the rules even more flexible for what hate speech could say.

Brandenberg v. Ohio (1969)

Cut to Ohio in the middle of the Civil Rights Movement. Clarence Brandenberg, a big wig in the KKK was making a hateful speech that suggested their organization should overthrow the government. Brandenberg is arrested for advocating a crime, and he went to court (represented by the ACLU).

The case went to the Supreme Court, and they decided to narrow the idea of what kind of speech could be limited even further by creating the “imminent lawless action” test. The test basically says that hate speech can only be limited if:

1. The speech is “directed to inciting or producing imminent lawless action,” AND
2. The speech is “likely to incite or produce such action.”

These two rules are still the way that we judge any kind of illegal hate speech today.

Manal v. Tam (2017)

This case didn’t set any new standards or create any new rules, but it’s significant because it JUST happened. A band wanted to use the name The Slants, and the government wanted to limit their trademark rights. The group is made up of Asian Americans who wanted to redefine what had been a derogatory term, but the trademark office wanted to limit the trademark because the name is hate speech.

Unanimously, the Supreme Court decided that the government cannot discriminate against any speech, including hate speech.

Justice Samuel Alito wrote in one of two opinions that suppressing ”speech expressing ideas that offend … strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”

Recently, this issue has sparked an internal debate in the ACLU.

According to reporting by The New York Times, after the ACLU defended the Charlottesville protesters and their free speech rights to assemble and march, some staffers felt unsettled. Approximately 200 of the organization’s approximately 1,300 employees signed onto a letter questioning its repeated defense of the hate speech of white supremacist groups.

In the letter, they stated, “Our broader mission — which includes advancing the racial justice guarantees in the Constitution and elsewhere, not just the First Amendment — continues to be undermined by our rigid stance.”

Defenders of the ACLU’s actions argue that nothing should supersede the right to free speech, but to that, we ask, why? At what point do other constitutional rights make hate speech troubling? Because as we’ve seen recently, the voices of white supremacists and racists seem to be growing in power, while the voices of minorities continue to be suppressed.

So what’s wrong? In this country, we value free speech above all else, so hate speech should be fine, right?

The problem is, we don’t value free speech above all else. Other kinds of speech have very clear (and pretty strict) limits — specifically obscenity. In America, the government CAN limit our speech if they deem it “obscene.”

Speech can be deemed “obscene” if it meets these three requirements:

1. If “the average person, applying contemporary community standards” would find the speech “taken as a whole,” is something that appeals to “prurient interest” i.e. excessively sexual interest.
2. If the speech depicts or describes sexual conduct in an offensive way.
3. And finally if the speech “taken as a whole,” lacks serious literary, artistic, political, or scientific value.

Basically, a person in a public park with a megaphone can’t explicitly describe something pornographic if it has no other value. But that person can shout racist, homophobic, antisemitic, or other offensive comments to their heart’s content.

That seems like a problem. We limit sex talk, but we don’t limit hateful speech as a country. And yet, hateful speech does inspire violence. We don’t have many cases of pornographic images causing deaths and major injuries. It seems like there has to be a way to prevent these kinds of incidents. Maybe we as a society need to rethink how much we’re willing to tolerate those who are utterly intolerant.